The High Court has dismissed an urgent application by Government Spokesperson Alpheous Nxumalo, who had sought to challenge the constitutionality of the Sexual Offences and Domestic Violence (SODV) Act of 2018, arguing that it made unlawful amendments to Swazi law and custom.
Nxumalo, represented by lawyer Khumbulani Msibi, had approached the High Court on an urgent basis while facing two rape charges before Principal Magistrate David Khumalo. He argued that of the House of Assembly speaker, Senate president and deputy prime minister had failed to comply with constitutional requirements in enacting the Act, which he claimed made drastical inroads into customary law.
He asked the court to declare the SODV Act void ab initio meaning invalid from the beginning and consequently to set aside the criminal charges he faces.
The application was opposed by the deputy prime minister (DPM), who raised several points in limine and argued that Nxumalo had failed to make out any case justifying constitutional intervention.
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The DPM submitted that Nxumalo had not shown that the conduct for which he was charged was permissible under customary law nor how the Act had criminalised such conduct. The affidavit further described Nxumalo’s approach as inviting the court into an entirely theoretical and academic exercise.
The respondent also argued that Nxumalo ought to have raised the issue of constitutionality before the trial court, which has jurisdiction to consider such questions and, if necessary, refer them to the High Court for determination.
A full bench comprising Judge Mumcy Dlamini, Judge Bongani Dlamini and Judge Zonke Magagula heard the matter. Delivering the judgment, Judge Mumcy emphasised that Nxumalo had the burden to demonstrate a direct and substantial interest in the matter by showing exactly how the SODV Act had altered or amended a specific principle of customary law to his prejudice.
The court stated that Nxumalo was required to first lay out the relevant customary law and then demonstrate the right he enjoyed under that law prior to the enactment of the SODV Act.
He was also expected to show how the Act had changed that law to his detriment.
Judge Mumcy noted that the first point of inquiry was whether Nxumalo had locus standi, meaning the right to bring the case before court. She cited authorities which establish that an individual must show a direct injury caused by the challenged Act, not merely assert that the Act is invalid.
She emphasised that there must be a correlation between the alleged amended customary law and the specific charges Nxumalo faces. “He cannot refer to any customary law which does not correspond to the charge,” she said.
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The judgment also addressed the correct procedure for raising constitutional issues in criminal proceedings. Judge Mumcy said if an accused believes that a charge discloses no offence, he must invoke Section 155 of the Criminal Procedure and Evidence Act, 1938, by excepting to the charge and applying for it to be quashed.
She said Nxumalo was not entitled to seek a stay of proceedings in order to bring a constitutional application directly before the High Court.
The court found that Nxumalo failed to meet these requirements. Although he listed several customary practices which he alleged had been criminalised or altered by the SODV Act, he did not show how those practices related to the charges he faces or how they constituted applicable customary law.
The judges held that many of Nxumalo’s assertions did not demonstrate customary law at all, while others related to offences that existed even before the SODV Act under common law. They noted that courts adjudicate live disputes and not abstract or academic concerns.
The court concluded that Nxumalo had failed to establish locus standi in his founding affidavit. He stood or fell on those papers and the application was, therefore, dismissed.
